BILL NUMBER: AB 526 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2009
AMENDED IN SENATE JULY 15, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY APRIL 16, 2009
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 25, 2009
An act to add and repeal Article 14 (commencing with Section 2340)
of Chapter 5 of Division 2 of the Business and Professions Code,
relating to physicians and surgeons.
LEGISLATIVE COUNSEL'S DIGEST
AB 526, as amended, Fuentes. Public Protection and Physician
Health Program Act of 2009.
Existing law establishes in the Department of Consumer Affairs the
Substance Abuse Coordination Committee, comprised of the executive
officers of the department's healing arts boards, as specified, and a
designee of the State Department of Alcohol and Drug Programs.
Existing law requires the committee to formulate, by January 1, 2010,
uniform and specific standards in specified areas that each healing
arts board shall use in dealing with substance-abusing licensees. The
Medical Practice Act establishes in the Department of Consumer
Affairs the Medical Board of California, which provides for the
licensure and regulation of physicians and surgeons.
This bill would enact the Public Protection and Physician Health
Program Act of 2009, which would, until January 1, 2021, establish
within the State and Consumer Services Agency the
Public Protection and Physician Health Oversight
Committee, consisting of 14 members appointed by
specified entities, would require the committee to be
appointed formed and to hold its first meeting
by March 1, 2010, and would require agency adoption of
related the committee to adopt rules and
regulations necessary to implement these provisions by
June 30, 2010. The bill would require the committee to
recommend to the agency one or more physician health programs, and
would authorize the agency
committee to contract, including on an interim basis, as
specified, with any qualified physician health program for purposes
of care and rehabilitation of physicians and surgeons ,
including applicants enrolled in an approved postgraduate training
program, with alcohol or drug abuse or dependency problems or
mental disorders , as specified. The bill would impose
requirements on the physician health program relating to, among other
things, monitoring the status and compliance of physicians and
surgeons , as defined, who enter treatment for
a qualifying illness, as defined, pursuant to written, voluntary
agreements, and would require the agency and
committee to monitor compliance with these requirements. The bill
would provide that a voluntary agreement to receive treatment would
not be subject to public disclosure or disclosure to the Medical
Board of California, except as specified. The bill would require the
board to increase physician and surgeon and applicant
licensure and renewal fees for purposes of the act, and would
establish the Public Protection and Physician Health Program Trust
Fund for deposit of those funds, which would be subject to
appropriation by the Legislature. The bill would also require
specified performance audits.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares that:
(a) California has long valued high quality medical care for its
citizens and, through its regulatory and enforcement system, protects
health care consumers through the proper licensing and regulation of
physicians and surgeons to promote access to quality medical care.
The protection of the public from harm by physicians and surgeons who
may be impaired by alcohol or substance abuse or dependence or by a
mental disorder is paramount.
(b) Nevertheless, physicians and surgeons experience
health-related problems at the same frequency as the general
population, and many competent physicians and surgeons with illnesses
may or may not immediately experience impairment in their ability to
serve the public. It has been estimated that at least 10 percent of
the population struggles with alcohol or substance abuse or
dependence during their lifetime, which may, at some point, impact
approximately 12,500 of the state's 125,000 licensed physicians and
surgeons.
(c) It is in the best interests of the public and the medical
profession to provide a pathway to recovery for any licensed
physician and surgeon that is currently suffering from alcohol or
substance abuse or dependence or a mental disorder. The American
Medical Association has recognized that it is an expression of the
highest meaning of professionalism for organized medicine to take an
active role in helping physicians and surgeons to lead healthy lives
in order to help their patients, and therefore, it is appropriate for
physicians and surgeons to assist in funding such a program.
(d) While nearly every other state has a physician health program,
since 2007 California has been without any state program that
monitors physicians and surgeons who have independently obtained, or
should be encouraged to obtain, treatment for alcohol or substance
abuse or dependence or for a mental disorder, so that they do not
treat patients while impaired.
(e) It is essential for the public interest and the public health,
safety, and welfare to focus on early intervention, assessment,
referral to treatment, and monitoring of physicians and surgeons with
significant health impairments that may impact their ability to
practice safely. Such a program need not, and should not necessarily,
divert physicians and surgeons from the disciplinary system, but
instead focus on providing assistance before any harm to a patient
has occurred.
(f) Therefore, it is necessary to create a program in California
that will permit physicians and surgeons to obtain referral to
treatment and monitoring of alcohol or substance abuse or dependence
or a mental disorder, so that they do not treat patients while
impaired.
SEC. 2. Article 14 (commencing with Section 2340) is added to
Chapter 5 of Division 2 of the Business and Professions Code, to
read:
Article 14. Public Protection and Physician Health Program
2340. This article shall be known and may be cited as the Public
Protection and Physician Health Program Act of 2009.
2341. For purposes of this article, the following terms have the
following meanings:
(a) "Agency" means the State and Consumer Services Agency.
(b)
(a) "Board" means the Medical Board of California.
(c)
(b) "Committee" means the Public Protection and
Physician Health Oversight Committee established pursuant
to Section 2342.
(d)
(c) "Impaired" or "impairment" means the inability to
practice medicine with reasonable skill and safety to patients by
reason of alcohol abuse, substance abuse, alcohol dependency, any
other substance dependency, or a mental disorder.
(e)
(d) "Participant" means a physician and surgeon
enrolled in the program pursuant to an agreement entered into as
provided in Section 2345.
(f)
(e) "Physician health program" or "program" means the
program for the prevention, detection, intervention, monitoring, and
referral to treatment of impaired physicians and surgeons, and
includes vendors, providers, or entities contracted with by the
agency committee pursuant to this
article.
(g)
(f) "Physician and surgeon" means a holder of a
physician's and surgeon's certificate. For the purposes of this
article only, "physician and surgeon" shall also include a graduate
of a medical school approved or recognized by the board while
enrolled in a postgraduate training program approved by the board.
(h)
(g) "Qualifying illness" means "alcohol or substance
abuse," "alcohol or chemical dependency," or a "mental disorder" as
those terms are used in the Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-IV) or subsequent editions.
(i) "Secretary" means the Secretary of State and Consumer
Services.
(j)
(h) "Treatment program" or "treatment" means the
delivery of care and rehabilitation services provided by an
organization or persons authorized by law to provide those services.
2342. (a) (1) There is hereby established within the
State and Consumer Services Agency the Public Protection
and Physician Health Committee Oversight
Committee, which shall have the responsibilities and duties set forth
in this article. The committee may take any reasonable actions to
carry out the responsibilities and duties set forth in this article,
including, but not limited to, hiring staff and entering into
contracts . The committee shall be appointed
formed and hold its first meeting no later than March 1,
2010. The committee shall be comprised of 14 members who
shall be appointed as follows the followin
g members :
(A) Eight members appointed by the secretary, including the
following:
(i)
(A) Two members who are
selected by the California Psychiatric Association, unless that
entity chooses not to exercise this right of selection. These members
shall be licensed mental health professionals with knowledge
and expertise in the identification and treatment of substance abuse
and mental disorders. With respect to the initial members
selected pursuant to this subparagraph, one member shall serve a term
of two years and one member shall serve a term of three years.
(ii) Six members who are physicians and surgeons with knowledge
and expertise in the identification and treatment of alcohol
dependence and substance abuse. One member shall be a designated
representative from a panel recommended by a nonprofit professional
association representing physicians and surgeons licensed in this
state with at least 25,000 members in all modes of practice and
specialties. The secretary shall fill one each of the remaining
appointments from among those individuals as may be recommended by
the California Society of Addiction Medicine, the California
Psychiatric Association, and the California Hospital Association.
(B) (i) Three members selected by a nonprofit professional
association representing physicians and surgeons licensed in this
state with at least 25,000 members in all modes of practice and
specialities, unless that entity chooses not to exercise this right
of selection. With respect to the initial members selected pursuant
to this clause, one member shall serve a term of two years, one
member shall serve a term of three years, and one member shall serve
a term of four years.
(ii) Two members selected by the California Society of Addiction
Medicine, unless that entity chooses not to exercise this right of
selection. With respect to the initial members selected pursuant to
this clause, one member shall serve a term of two years and one
member shall serve a term of three years.
(iii) One member selected by the California Hospital Association,
unless that entity chooses not to exercise this right of selection.
The initial member selected shall serve a term of three years.
(iv) The members selected pursuant to this subparagraph shall be
physicians and surgeons with knowledge and expertise in the
identification and treatment of alcohol dependence and substance
abuse.
(B)
(C) Four members of the public appointed by the
Governor, at least one of whom shall have experience in advocating on
behalf of consumers of medical care in this state. With respect
to the initial appointees, the Governor shall appoint two members
for a two-year term, and two members for a four-year term.
(C)
(D) One member of the public appointed by the Speaker
of the Assembly. The initial appointee under this subparagraph
shall serve a term of three years.
(D)
(E) One member of the public appointed by the Senate
Committee on Rules. The initial appointee under this
subparagraph shall serve a term of three years.
(2) (A) For the purpose of this subdivision, a public member may
not be any of the following:
(i) A current or former physician and surgeon or an immediate
family member of a physician and surgeon.
(ii) Currently or formerly employed by a physician and surgeon or
business providing or arranging for physician and surgeon services,
or have any financial interest in the business of a licensee.
(iii) An employee or agent or representative of any organization
representing physicians and surgeons.
(B) Each public member shall meet all of the requirements for
public membership on the a board as set
forth in Chapter 6 (commencing with Section 450) of Division 1.
(b) Members of the committee shall serve without compensation, but
shall be reimbursed for any travel expenses necessary to conduct
committee business.
(c) Committee Except as provided in
subdivision (a), committee members shall serve terms of four
years, and may be reappointed. With respect to the initial
appointees, the Governor shall appoint two members for a two-year
term, one member for a three-year term, and one member for a
four-year term. The Senate Committee on Rules and the Speaker of the
Assembly shall each initially appoint one member for a three-year
term. The secretary shall initially appoint four members for a
two-year term, two members for a three-year term, and two members for
a four-year term.
(d) The committee shall be subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code) ,
and shall prepare any additional recommended and the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code). The committee
shall adopt any rules and regulations necessary or
advisable for the purpose of implementing this article,
subject to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code). The rules and regulations shall include appropriate
minimum standards and requirements for referral to treatment, and
monitoring of participants in the physician health program, and shall
be written in a manner that provides clear guidance and measurable
outcomes to ensure patient safety and the health and wellness of
physicians and surgeons. The agency shall adopt regulations
for the implementation of this article, taking into consideration the
regulations recommended by the committee. and
surgeons.
(e) The rules and regulations required by this section shall be
adopted not later than June 30, 2010, and shall, at a minimum, be
consistent with the uniform standards adopted pursuant to Section
315, and shall include all of the following:
(1) Minimum standards, criteria, and guidelines for the
acceptance, denial, referral to treatment, and monitoring of
physicians and surgeons in the physician health program.
(2) Standards for requiring that a physician and surgeon agree to
cease practice to obtain appropriate treatment services.
(3) Criteria that must be met prior to a physician and surgeon
returning to practice.
(4) Standards, requirements, and procedures for random testing for
the use of banned substances and protocols to follow if that use has
occurred.
(5) Worksite monitoring requirements and standards.
(6) The manner, protocols, and timeliness of reports required to
be made pursuant to Section 2345.
(7) Appropriate requirements for clinical diagnostic evaluations
of program participants.
(8) Requirements for a physician and surgeon's termination from,
and reinstatement to, the program.
(9) Requirements that govern the ability of the program to
communicate with a participant's employer or organized medical staff
about the participant's status and condition.
(10) Group meeting and other self-help requirements, standards,
protocols, and qualifications.
(11) Minimum standards and qualifications of any vendor, monitor,
provider, or entity contracted with by the agency
committee pursuant to Section 2343.
(12) A requirement that all physician health program services
shall be available to all licensed physicians and surgeons with a
qualifying illness.
(13) A requirement that any physician health program shall do all
of the following:
(A) Promote, facilitate, or provide information that can be used
for the education of physicians and surgeons with respect to the
recognition and treatment of alcohol dependency, chemical dependency,
or mental disorders, and the availability of the physician health
program for qualifying illnesses.
(B) Offer assistance to any person in referring a physician and
surgeon for purposes of assessment or treatment, or both, for a
qualifying illness.
(C) Monitor the status during treatment of a physician and surgeon
who enters treatment for a qualifying illness pursuant to a written,
voluntary agreement.
(D) Monitor the compliance of a physician and surgeon who enters
into a written, voluntary agreement for a qualifying illness with the
physician health program setting forth a course of recovery.
(E) Agree to accept referrals from the board to provide monitoring
services pursuant to a board order.
(F) Provide a clinical diagnostic evaluation of physicians and
surgeons entering the program.
(14) Rules and procedures to comply with auditing requirements
pursuant to Section 2348.
(15) A definition of the standard of "reasonably likely to be
detrimental to patient safety or the delivery of patient care,"
relying, to the extent practicable, on standards used by hospitals,
medical groups, and other employers of physicians and surgeons.
(16) Any other provision necessary for the implementation of this
article.
2343. (a) On and after July 1, 2010, upon adoption of the rules
and regulations required by Section 2342, the committee
shall recommend one or more physician health programs to the agency,
and the agency may contract with any qualified physician
health program. The physician health program shall be a nonprofit
corporation organized under Section 501(c)(3) of Title 26 of the
United States Code. The chief executive officer shall have expertise
in the areas of alcohol abuse, substance abuse, alcohol dependency,
other chemical dependencies, and mental disorders. In order to
expedite the delivery of physician health program services
established by this article, the agency
committee may contract with an entity meeting the minimum
standards and requirements set forth in subdivision (e) of Section
2342 on an interim basis prior to the adoption of any
additional the rules and regulations required to
be adopted pursuant to subdivision (d)
subdivisions (d) and (e) of Section 2342. The agency
committee may extend the contract when the rules
and regulations are adopted, provided that the physician health
program meets the requirements in those rules and regulations.
(b) Any contract entered into pursuant to this article shall
comply with all rules and regulations required to be adopted pursuant
to this article. No entity shall be eligible to provide the services
of the physician health program that does not meet the minimum
standards, criteria, and guidelines contained in those rules and
regulations.
(c) The contract entered into pursuant to this article shall also
require the contracting entity to do both of the following:
(1) Report annually to the committee statistics, including the
number of participants served, the number of compliant participants,
the number of participants who have successfully completed their
agreement period, and the number of participants reported to
the board for suspected noncompliance by the
physician health program pursuant to subdivision (c) of Section 2345
; provided, however, that in making that report, the physician
health program shall not disclose any personally identifiable
information relating to any physician and surgeon participating in a
voluntary agreement as provided in this article.
(2) Agree to submit to periodic audits and inspections of all
operations, records, and management related to the physician health
program to ensure compliance with the requirements of this article
and its implementing rules and regulations.
(d) In addition to the requirements of Section 2348, the
agency, in conjunction with the committee, committee
shall monitor compliance of the physician health program with
the requirements of this article and its implementing regulations,
including making periodic inspections and onsite visits with any
entity contracted to provide physician health program services.
2344. The agency committee has the
sole discretion to contract with a physician health program for
licensees of the board and no provision of this article may be
construed to entitle any physician and surgeon to the creation or
designation of a physician health program for any individual
qualifying illness or group of qualifying illnesses.
2345. (a) In order to encourage voluntary participation in
monitored alcohol or chemical dependency or mental disorder treatment
programs, and in recognition of the fact that mental disorders,
alcohol dependency, and chemical dependency are illnesses, a
physician and surgeon, certified or otherwise lawfully practicing in
this state, may enter into a voluntary agreement with a physician
health program. The agreement between the physician and surgeon and
the physician health program shall include a jointly agreed upon
treatment program and mandatory conditions and procedures to monitor
compliance with the treatment program, including, but not limited to,
an agreement to cease practice, as defined by the rules and
regulations adopted pursuant to Section 2342. Except as provided in
subdivisions (b), (c), (d), and (e), a physician and surgeon's
participation in the physician health program pursuant to a voluntary
agreement shall be confidential unless waived by the physician and
surgeon.
(b) (1) Any voluntary agreement entered into pursuant to this
section shall not be considered a disciplinary action or order by the
board, shall not be disclosed to the board, and shall not be public
information if all of the following are true:
(A) The voluntary agreement is the result of the physician and
surgeon self-enrolling or voluntarily participating in the physician
health program.
(B) The board has not referred a complaint against the physician
and surgeon to a district office of the board for investigation for
conduct involving or alleging an impairment adversely affecting the
care and treatment of patients.
(C) The physician and surgeon is in compliance with the treatment
program and the conditions and procedures to monitor compliance.
(2) (A) Each participant, prior to entering into the voluntary
agreement described in paragraph (1), shall disclose to the committee
whether he or she is under investigation by the board. If a
participant fails to disclose such an investigation, upon enrollment
or at any time while a participant, the participant shall be
terminated from the program. For those purposes, the committee shall
regularly monitor recent accusations filed against physicians and
surgeons and shall compare the names of physicians and surgeons
subject to accusation with the names of program participants.
(B) Notwithstanding subparagraph (A), a participant who is under
investigation by the board and who makes the disclosure required in
subparagraph (A) may participate in, and enter into a voluntary
agreement with, the physician health program.
(c) (1) If a physician and surgeon enters into a voluntary
agreement with the physician health program pursuant to this article,
the physician health program shall do both of the following:
(A) In addition to complying with any other duty imposed by law,
report to the committee the name of and results of any contact or
information received regarding a physician and surgeon who is
suspected of being, or is, impaired and, as a result, whose
competence or professional conduct is reasonably likely to be
detrimental to patient safety or to the delivery of patient care.
(B) Report to the committee if the physician and surgeon fails to
cooperate with any of the requirements of the physician health
program, fails to cease practice when required, fails to submit to
evaluation, treatment, or biological fluid testing when required, or
whose impairment is not substantially alleviated through treatment,
or who, in the opinion of the physician health program, is unable to
practice medicine with reasonable skill and safety, or who withdraws
or is terminated from the physician health program prior to
completion.
(2) Within 48 hours of receiving a report pursuant to paragraph
(1), the committee shall make a determination as to whether the
competence or professional conduct of the physician and surgeon is
reasonably likely to be detrimental to patient safety or to the
delivery of patient care, and, if so, refer the matter to the board
consistent with rules and regulations adopted by the agency
committee . Upon receiving a referral pursuant
to this paragraph, the board shall take immediate action and may
initiate proceedings to seek a temporary restraining order or interim
suspension order as provided in this division.
(d) Except as provided in subdivisions (b), (c), and (e), and this
subdivision, any oral or written information reported to the board
pursuant to this section, including, but not limited to, any
physician and surgeon's participation in the physician health program
and any voluntary agreement entered into pursuant to this article,
shall remain confidential as provided in subdivision (c) of Section
800, and shall not constitute a waiver of any existing evidentiary
privileges under any other provision or rule of law. However, this
subdivision shall not apply if the board has referred a complaint
against the physician and surgeon to a district office of the board
for investigation for conduct involving or alleging an impairment
adversely affecting the care and treatment of patients.
(e) Nothing in this section prohibits, requires, or otherwise
affects the discovery or admissibility of evidence in an action
against a physician and surgeon based on acts or omissions within the
course and scope of his or her practice.
(f) Any information received, developed, or maintained by the
agency committee regarding a physician
and surgeon in the program shall not be used for any other purpose.
2346. The committee shall report to the agency
compile the statistics received from the physician health
program pursuant to Section 2343, and the agency shall,
thereafter, report to the Legislature the 2343, and
shall report to the Legislature, on or before March 1, 2011, and
annually thereafter, the number of individuals served, the
number of compliant individuals, the number of individuals who have
successfully completed their agreement period, and the number of
individuals reported to the board for suspected
noncompliance pursuant to subdivision (c) of Section
2345 ; provided, however, that in making that report the
agency committee shall not disclose any
personally identifiable information relating to any physician and
surgeon participating in a voluntary agreement as provided herein.
2347. (a) A physician and surgeon participating in a voluntary
agreement shall be responsible for all expenses relating to chemical
or biological fluid testing, treatment, and recovery as provided in
the written agreement between the physician and surgeon and the
physician health program.
(b) In addition to the fees charged for the initial issuance or
biennial renewal of a physician and surgeon's certificate pursuant to
Section 2435, and at the time those fees are charged, the board
shall include a surcharge of not less than twenty-two dollars ($22),
or an amount equal to 2.5 percent of the fee set pursuant to Section
2435, whichever is greater, and which shall be expended solely for
the purposes of this article. The board shall collect this surcharge
and cause it to be transferred monthly to the trust fund established
pursuant to subdivision (c). This amount may be separately identified
on the fee statement provided to physicians and surgeons as being
imposed pursuant to this article. The board may include a conspicuous
statement indicating that the Public Protection and Physician Health
Program is not a program of the board and the collection of this fee
does not, nor shall it be construed to, constitute the board's
endorsement of, support for, control of, or affiliation with, the
program.
(c) There is hereby established in the State Treasury the Public
Protection and Physician Health Program Trust Fund into which all
funds collected pursuant to this section shall be deposited. These
funds shall be used, upon appropriation in the annual Budget Act,
only for the purposes of this article.
(d) Nothing in this section is intended to limit the amount of
funding that may be provided for the purposes of this article. In
addition to funds appropriated in the annual Budget Act, additional
funding from private or other sources may be used to ensure that no
person is denied
access to the services established by this program due to a lack of
available funding.
(e) All costs of the committee and program established pursuant to
this article shall be paid out of the funds collected pursuant to
this section.
2348. (a) The agency committee
shall biennially contract to perform a thorough audit of the
effectiveness, efficiency, and overall performance of the program and
its vendors. The agency committee may
contract with a third party to conduct the performance audit, except
the third party may not be a person or entity that regularly
testifies before the board. This section is not intended to reduce
the number of audits the agency committee
or board may otherwise conduct.
(b) The audit shall make recommendations regarding the
continuation of this program and this article and shall suggest any
changes or reforms required to ensure that individuals participating
in the program are appropriately monitored and the public is
protected from physicians and surgeons who are impaired due to
alcohol or drug abuse or dependency or mental disorder. Any person
conducting the audit required by this section shall maintain the
confidentiality of all records reviewed and information obtained in
the course of conducting the audit and shall not disclose any
information that is identifiable to any program participant.
(c) If, during the course of an audit, the auditor discovers that
a participant has harmed a patient, or a patient has died while being
treated by a participant, the auditor shall include that information
in his or her audit, and shall investigate and report on how that
participant was dealt with by the program.
(d) A copy of the audit shall be made available to the public by
posting a link to the audit on the agency's
committee's Internet Web site homepage no less than 10 business
days after publication of the audit. Copies of the audit shall also
be provided to the Assembly and Senate Committees on Business and
Professions and the Assembly and Senate Committees on Health within
10 business days of its publication.
2349. This article shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.